Why a Felon Got on the WV Presidential Primary Ballot: The Untold Story
The real culprit in the Keith Judd case
Attorney general should head off such adventures
All around West Virginia, people are asking: how can a felon run for president, but remain ineligible to vote?
While many blame the West Virginia secretary of state for this national fiasco, she is not the only elected official with culpability.
The fundamental problem with Keith Judd’s ability to easily access the ballot lies both in the lack of specificity of the West Virginia election code and the inability of Attorney General Darrell McGraw to provide the secretary of state and the Legislature with legal strategies to make it very difficult or practically impossible for a felon to run.
The attorney general is the chief law enforcement officer in the state and should have proactively identified and sought to fix this and other basic election law problems a long time ago.
Let’s start with some threshold issues.
The U.S. Constitution establishes the qualifications for an individual to run for president. It requires an individual to be a natural-born citizen, at least 35 years of age, and a resident of the United States for 14 years.
Presumably, Keith Judd met these qualifications.
But this doesn’t have to be the end of the story. Since the Constitution arguably does not dictate the rules under which a state must run a presidential election (the Constitution discusses only the qualifications for an individual to serve), such power is “arguably reserved to the states” under the 10th Amendment.
Indeed, states have latitude to establish the time, manner, and method of holding this election.
This means the Legislature could have created more rigorous ballot access requirements for individuals running for president, including felon Keith Judd.
Such rules might have included requiring a certain number of signatures on a petition, or a physical-presence certification process.
These rules would need to be crafted in a manner to overcome judicial scrutiny.
Of course, interpretations of relevant provisions of the Constitution, case law, and the West Virginia code are legal issues.
As such, while there is a role for the secretary of state in this process, the attorney general bears the ultimate responsibility for serving as the state’s chief election lawyer and issuing legal opinions about interpretations of law..
Unlike the attorney general, the secretary of state has a ministerial function that limits her discretion. The attorney general should be leading on this issue and counseling the secretary of state and the Legislature about how to avoid such an embarrassing problem.
He is the state’s chief lawyer after all.
An attorney general must be competent in election law and identify the ambiguities in the state code that place our state’s reputation at risk. A competent attorney general would not allow crisis after crisis to occur in our electoral process.
Confusing, inadequate, or inconsistent areas of the state election code and regulations should be addressed in advance of:
1) a vacancy for governor;
2) disputes over state Senate residency requirements; and
3) when a felon files to run for president.
The West Virginia code must also be clarified to ensure that one constitutional officer — the attorney general — possesses the power to enforce election law rules and violations and bears official responsibility to solve problems before they are sent to the courts.
Senate Judiciary Chairman Corey Palumbo has indicated that he plans to focus on clarifying some of our state’s election laws this week during legislative interim meetings. That’s a good idea.
It would also be helpful to draft legislation that will ensure that the attorney general’s office becomes more intimately involved in election law decisions in the first place.
In my campaign for attorney general, I have proposed significant reforms to the state’s election law enforcement process. Perhaps some of those commonsense ideas could be advanced during the next session.
West Virginia is now the brunt of unflattering jokes about how we run our elections.
This is unacceptable, but not surprising because of the confusion in job duties between two of our state’s constitutional officers.
In the final analysis, the secretary of state is not an attorney and should not be viewed as the state’s principal election lawyer.
The election law function clearly rests within the office of attorney general.
Isn’t it time we clarify the roles of these offices so that we can proactively solve problems before they rise to the level of a Keith Judd fiasco?
With just a little bit of planning, we can avoid constant election law sideshows.
~~ Patrick Morrisey ~~
Morrisey, who lives in Harpers Ferry, is the Republican candidate for attorney general. A former election lawyer, he has handled multiple ballot access issues and counseled individuals and political parties on how to prevent voter fraud.
I would imagine that the Attorney General offers legal opinions to the secretary of state when asked to do so. Mr. McGraw was elected attorney general, not secretary of state. If the lack of specificity in the election code has been of such concern to you, why have you not discussed the matter with your state representatives? Perhaps you spend too much time inside the beltway of Washington, DC representing large corporations. Or are you merely on a witch hunt while trying to feather your own nest. Don’t blame Darrell McGraw for all that is wrong with the world.
Comment by Rodney Marsh - Beckley on 05.16.2012
I read the article of WHY this morning written by Patrick Morrisey. Sounds like he is a very intelligent man that is a candidate for Republican Attorney General and I will be giving him a Democrat vote. If the ones we
now have in office won’t/can’t/don’t do what is best for WV get them out.
If SOS or the Attorney General had pursued the matter instead of declaring they couldn’t do anything about it, a local candidate running to fill a vacancy for Magistrate that lied about having a creditable GED and/or High School Diploma would not have been on the ballot and made a laughing stock out of Gilmer county once again. Some say, look for the positive things happening in Gilmer County. My positive is we kept Magistrate Carol Wolfe in office for another term and kept the now sheriff out of filling one of those empty magistrate seats. What a shame we don’t have a honest Prosecuting Attorney in Gilmer Co. What a shame people were not smart enough to keep out a former commissioner. Look out Gilmer…...he’s back.
Comment by ANONYMOUS Again on 05.16.2012
The really embarassing thing about the WV primary elections is that the voter has NO chance to voice his/her choice other than to vote for someone on the ballot. We need to have write in capability in the primary election. Someone once told me we didn’t have that choice because “the wrong people” might get elected. Well, the “wrong people” get elected quite often because there isn’t anyone else to vote for! And who is qualified to decide who the “wrong people” are!!
Comment by Karen Pennebaker on 05.16.2012
To anonymous again:
We still do have a choice for county commissioner. Darren Feit is running on the Republican ticket. Darren is very good at researching things and I think he would be a good commissioner. He actually might did too deep sometimes.
Larry is not the only choice. Keep that in mind.
Comment by Rose on 05.16.2012
I am not voting for him till you go across that creek and he pays taxes on all the cement mixers and cranes, equipment and other stuff that he owns. Some people pay their taxes in this county. You don’t believe it? go look. Then wait till you hear why. You try it see if you can get by with it. Another leach
Comment by Glenn Ashley on 05.17.2012
Your commission candidate and the assessor have said that the Feit tax situation is legal each and every time the question was brought up over past several years. Why is it a problem now? If I thought somebody was getting an illegal personal property tax break I’d be calling the courthouse and the tax dept in Charleston instead of making the same old accusations with no foundation in the law to support a political agenda.
Comment by DA on 05.17.2012
Do we need another commissioner in this county that does not own property here. They pay property tax on ONE vehicle one has been paid by our tax dollars for years the other ONE pays taxes on ONE vehicle. If that is what this county wants it doesn’t surprise me. I am not taking up for Chapman either. Just i think people should at least own property here pay tax on it if there going to manage our money. These TWO don’t UNLESS Mrs JAMES give APIECE a way. We might as well just hire a out of county firm to manage the county it might be cheaper and we don’t have to pay benefits
Comment by Glenn Ashley on 05.17.2012
yes Larry, sorry I mean Glen, may as well give the county away, give the schools away and sell our land because that’s the big picture. We might as well not fight any battle we can’t win. Might as well let strangers handle all our business except private business. Heard it all. Why complain now about things that didn’t seem to matter? Day late and a dollar short don’t ya think?
Comment by What We Have Done on 05.17.2012
Sorry not supporting either one, if your a true tax payer you would most likely signed your name. The facts are the facts you may not like it. I have found out most people that b**ch don’t vote. Or will not respect the people who do. Or you might not like me. You maybe one of the people that owes money to me or another local business in Gilmer CO. You did not think i KNEW who you were, the next time you decide to make a typographical error i Will print your name. And i will promise when i do it will be rite on the money.
PS THESE PEOPLE THAT COMMENT AND DON’T SIGN THEIR NAME SHOULD BE be ashamed. Gut-Less wonders if you have something to say and don’t have the nuts to back it up well you must be a very very large out house.
I am proud of my thoughts.
Comment by Glenn Ashley on 05.17.2012
The message should be much more important than the messenger but still people just don’t read or take the responsibility of independent thinking. It seems more important to know who said it, to be on the “right” side. I don’t like bullies. I don’t care for people telling others what they should and should not say or how to say it. That’s my right, my opinion. Don’t have any problem signing my name to this but for now I’ll just use…
Comment by Anonymous on 05.18.2012
I just feel you should contribute to the cause. You see where the world is today. When i speak of property owner i am meaning people that work hard and pay taxes struggle to feed their families. I am not talking about the people that are rich and cheat the system. Well your on track your most
likely a democrat. That’s alright this country will look like a gay PLANET OF THE APES in few years. THANKS lol
Comment by Glenn Ashley on 05.18.2012
Glenn, you want us to listen to what you say but it is difficult to do when your sentence structure is so poor, sentences run together and you often use the incorrect word. Just a few examples -
(1) Sorry not supporting either one, - should be Sorry, I am not supporting either one.
(2) If your a true taxpayer - should be you’re
(3) You maybe - should be may be
(4) Your promise is to be right (correct) on the money not rite (rite of passage) or wright or write. You are doing better - we can generally figure out most of what you are saying since you are now attempting to put things in sentences. This was one of your better written articles. Often do not agree with your narrow minded views but you do openly speak your mind and must get some credit for bravery.
Comment by Glenn's Teacher on 05.20.2012
Teacher, freedom of speech is the issue, not perfect grammar,syntax,and vocabulary. Since when are we to use those criteria as a litmus test for judging the validity of something citizens say? For those who are exceptionally adept at expressing themselves in writing does that mean that they are automatically superior to all others in knowing and practicing right from wrong? Of course not! Some of history’s greatest tyrants were master communicators. The same concept applies to judging the value of what people say by their net worth because some of the wealthiest are outright scoundrels. If we want a turnaround in Gilmer County we must spend more time thinking about right from wrong and what is best for the common good. That means that we can’t fall into traps set by those who want us to spend all our time on analyzing how messengers express themselves instead of what they want to say.
Comment by A. P. Hill on 05.20.2012
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